Tuesday, 8 January 2008

US Supreme Court Argues Lethal Injection Issue

On the day that the Supreme Court was due to start the debate on the constutionality of death by lethal injection, the Chicago Tribune published a very interesting article.

Chicago Tribune 7/01/08

"|Washington Bureau

Several minutes into his execution in 2006, the Florida inmate's mouth was moving and he was gasping for breath. Twenty minutes later, he was still breathing.

That same year, Ohio inmate Joseph Clark took even longer to die. As he was injected with the drugs to first anesthetize him, then paralyze him and then finally kill him, he raised his head and exclaimed: "It don't work." According to the medical examiner's report, Clark was conscious for almost an hour."

"At issue is the three-drug sequence. The first drug, sodium thiopental, is an anesthetic intended to cause unconsciousness. The second, pancuronium bromide, is a neuromuscular blocking agent that causes paralysis. The third, potassium chloride -- which is found in road salt -- is used to cause cardiac arrest and death.

Effective application of the drugs is critical. If the anesthetic doesn't function properly, the next two drugs cause excruciating pain. The neuromuscular paralyzer produces the sensation of suffocation in a conscious person. And an effect of the second agent is that the inmate cannot speak or relay that the anesthetic did not work. Advocates for changing the procedure have pushed for a single drug protocol involving a barbiturate, but no state has adopted it."

Chicago Tribune January 8th

"Court weighs lethal cocktail
Justices' reactions range from derisive to deeply concerned

"WASHINGTON - The Supreme Court grappled with detailed questions of medical science and the pharmacology of death Monday, all against the backdrop of a larger, more overriding concern -- whether inmates have a constitutional right to an execution that is as painless as possible.

The justices heard a challenge brought by two condemned Kentucky prisoners contesting the state's lethal injection procedure. The inmates contend that the protocol, which involves the sequential use of three drugs to numb, paralyze and kill the prisoner, carries with it an unconstitutional risk of extreme pain.

The claim met with hostility from several members of the court, with Justice Antonin Scalia openly ridiculing it. "This is an execution, not surgery," he griped.

The inmates, Ralph Baze and Thomas Bowling, argue that Kentucky uses poorly trained personnel to administer the drugs, creating an unnecessary risk of harm. The key to the process is effective application of the first drug, sodium thiopental, a barbiturate intended to anesthetize the inmate in advance of the second and third drugs, which can cause excruciating pain otherwise.

The inmates' lawyer, Donald Verrilli, contended that Kentucky, as an alternative, could use a shot of the barbiturate without the other drugs. Death might take longer, he said, but there would be no risk of pain.

But that was where Verrilli ran into trouble. Several justices complained that the science behind Verrilli's statement wasn't borne out in the lower court record.

"There's a risk of harm generally when you're talking about the death penalty," said Justice Stephen Breyer. He said he was bothered by studies that said the single dose wasn't as effective as the three-drug protocol. "I'm left at sea," Breyer said.

Breyer also was concerned about Verrilli's contention that medical personnel needed to be involved in the executions. (The state forbids it by law.) He noted that doctors consider such work a breach of medical ethics and wondered if anti-death penalty forces were trying to halt executions altogether by insisting on a procedure that could not be carried out in a practical way.

Thirty-six states use a procedure similar to Kentucky's, and a de facto moratorium on executions has in been in place nationwide since the court agreed to hear the Kentucky case.

Arguing for the state, lawyer Roy Englert conceded that if sodium thiopental was administered incorrectly, the prisoner would indeed suffer extreme pain. But, he said, the state had training and procedures in place to guard against it. He said that close monitoring of an inmate by medical professionals during the execution wasn't necessary because if the anesthetic didn't work properly, the inmate "would be awake and screaming."

But critics of the three-drug protocol say the second drug, pancuronium bromide, is a muscle-paralyzing agent that prevents inmates from alerting authorities to their pain. And Englert was pushed by Justice John Paul Stevens to explain why the paralyzer was even necessary.

"It does bring about a more dignified death," Englert said, "for the inmate and the witnesses."

"The dignity of the process outweighs the risk of excruciating pain?" Stevens shot back.

Stevens conceded that the lack of evidence in the record about risks in Kentucky's procedure -- the state has executed only one prisoner since it instituted the lethal injection regime -- meant it was unlikely the court would rule against the state. But, Stevens said, "I'm horribly troubled by the fact that this second drug causes a risk of excruciating pain."

That left the justices in a bit of a bind. At the end of the argument, there appeared to be two roads the court could take. The first involves sending the case back to the original trial court in Kentucky for further proceedings on the state's methods, including whether there might be a better pharmacological alternative.

That idea was not palatable to Scalia, who complained that it would cause a "nationwide cessation of executions while the trial court finishes its work."

The second would be for the court to rule in favor of Kentucky, holding that its procedures are constitutional. That, warned Justice David Souter, would invite another challenge from a state with a more extensive history involving flawed executions.

"We want some kind of definitive decision here," Souter said.



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